Roadway Express, Inc.Download PDFNational Labor Relations Board - Board DecisionsDec 8, 1978239 N.L.R.B. 653 (N.L.R.B. 1978) Copy Citation Roadway Express, Inc., and Richard Lee Hughes. Case 25-CA-9277 December 8, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On June 14, 1978, Administrative Law Judge Hut- ton S. Brandon issued the attached Decision in this proceeding. Thereafter, the General Counsel and Re- spondent filed exceptions and supporting briefs. The General Counsel also filed a brief supporting the Ad- ministrative Law Judge's Decision in part. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order to the extent consis- tent herewith. We agree with the Administrative Law Judge that Respondent violated Section 8(a)(1) of the Act by coercively interrogating an employee concerning his intended testimony before the Board without follow- ing appropriate safeguards, including assurances against reprisals. The Administrative Law Judge fur- ther concluded that there was no causal connection between Hughes' protected activities and his August 1977 discharge and that his absences afforded Re- spondent a valid basis for his discharge. The General Counsel excepts to this conclusion, asserting that Re- spondent seized upon Hughes' absences as a pretext upon which to discharge him for unlawful reasons. We find merit in these exceptions.' Because the facts set forth in detail by the Admin- istrative Law Judge are undisputed, we limit our- selves to a discussion of those aspects essential to consideration of the actual basis for Hughes' dis- charge. The Administrative Law Judge found that Hughes engaged in four forms of protected activity which, singly or in combination, could have consti- tuted an unlawful basis for his discharge. These ac- tivities include Hughes' efforts on behalf of PROD (Professional Drivers' Council, Inc.), his filing of a We find it unnecessary to reach or pass upon the allegation that Re- spondent also violated Sec. 8(aH4) in discharging Hughes and in the pro- cessing or denial of the grievance filed as a result of his discharge. inasmuch as our disposition of the 8(aX3) allegation discussed below affords essen- tially the same remedy. ROADWAY EXPRESS, INC. complaint with the Department of Transportation, his filing of grievances with the Union, and his filing of a charge with the Board. Hughes' PROD activities began in November 1976, when he attended a meeting of that organiza- tion along with employees Keefer and Loucks. At this meeting Hughes obtained literature and clothes patches indicating PROD support. He had the patches sewn to his work coveralls which he wore daily to work. It is undisputed that, in ensuing months, Hughes took an active role in PROD. He distributed PROD literature at Respondent's Fort Wayne terminal, including the "PROD Dispatch," the organization's newspaper, and he posted PROD literature on the Union's bulletin board maintained at the terminal. Ir. January 1977, he helped organize a PROD meeting and drove the speaker, a PROD director, to the meeting. In February 1977, Hughes sent a letter to PROD that was critical of Respon- dent's management and of working conditions at the terminal. This letter was published in the PROD Dis- patch in February and distributed at Respondent's terminal. As the Administrative Law Judge found, Respon- dent does not deny knowledge of Hughes' PROD activities. To the contrary, in March 1977, there was a dispute at the facility concerning whether PROD material could be posted on the union bulletin board. Hughes' supervisor, Terminal Manager Shapiro, ad- mitted that he had removed PROD literature from the Union's bulletin board on more than one occa- sion after checking with Union Secretary-Treasurer Bush and determining that the PROD material was not "official" union business. As a result of this con- troversy over removal of PROD material from the Union's bulletin board, Hughes filed an unfair labor practice charge that was subsequently withdrawn on May 4, 1977. Hughes' PROD involvement and his dissatisfac- tion with certain employment conditions led to the filing of several grievances. On December 20, 1976, he filed a complaint with the Department of Trans- portation concerning unsafe equipment at Respon- dent's terminal. Around the same time, he joined 23 other employees in filing a grievance with the Union over Respondent's asserted misuse of casual employ- ees. In February 1977. Hughes filed another griev- ance with the Union regarding the assignment of overtime to a less senior employee. In response to these protected activities, Respon- dent, through Shapiro, began to manifest its hostility in a manner evidencing a desire to rid itself of Shapiro's knolsledge of Hughes' PROD activities was also evidenced as late as August 1977, shortly before Hugh.es' discharge After Hughes had distributed a copy of the Dispatch critical of Shapiro, Shapiro remarked to Hughes that he (Shapiro) hoped Hughes would learn to spell his name right. 653 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hughes. Before filing the February overtime griev- ance, Hughes discussed the matter with Shapiro in the presence of employee Widenhoefer. Shapiro told Hughes, "[W]ell, if you collect [the overtime pay], you will have to file a grievance on it," and "[I]f you file a grievance on it, I will promise you that you won't have to worry about getting another chance at it." 3 In April 1977, Shapiro and Salesmen Koch and Cox were discussing generally "the guys . . . that were troublemakers." Shapiro referred to Hughes as a troublemaker and added that, "in order to get rid of the trouble, you would have to get rid of him." 4 Shapiro also made other remarks concerning firing or getting rid of Hughes. On an unspecified occasion, Shapiro and Respondent's employee and Union Steward Cady were discussing the accusation that Hughes had grabbed hold of Dock Supervisor Bourn. Shapiro told Cady that, if Hughes threatened his dispatchers "like that" and "anything like that" took place, he would find a way to fire Hughes. In June 1977, Shapiro even encouraged Hughes to quit. Confronting Hughes for having "leaned on his two wheeler" for 15 seconds "without doing anything," Shapiro told Hughes that he did not pay him to rest and did not want it to happen any more. Shapiro added, "Hughes, you hate your job. You should quit." Shapiro also stated that he would give Hughes 3 weeks' severance pay if he quit. Against this background, the Administrative Law Judge found that there is "without doubt substantial evidence on the record that extreme animosity ex- isted between Shapiro and Hughes." The Adminis- trative Law Judge also found that there is "substan- tial support for the conclusion argued by the General Counsel that Shapiro's animosity toward Hughes was based in significant part upon Hughes' protected ac- tivities." We agree with these findings. Our dis- agreement is with the Administrative Law Judge's ul- timate conclusion that Hughes' discharge was not unlawful. In making our determination that Hughes' dis- charge for absenteeism was pretextual, we adjudge the manner in which the discharge was effected as most suspect. According to Terminal Manager Sha- piro, he first became aware of an absenteeism prob- Hughes won the gnevance. The Administrative Law Judge acknowledged that the timing of this April reference to Hughes as a troublemaker "strongly suggests that it was prompted by Hughes filing of his charge with the Board." The Administra- tive Law Judge, however, apparently attempts to lessen the impact of Shapiro's statement by noting that his "animosity toward Hughes predated the filing of the charge as shown by his remarks regarding Hughes' filing of the February overtime grievance." What is clear, in any event, is that Shapiro's animosity towards Hughes stemmed, at least partly, from Hughes' protected activities. In this context, it is a reasonable inference that Hughes' filing of the charge in April exacerbated the situation. lem among a number of employees in the spring of 1977. In May, after most of Hughes' protected activi- ties had taken place, and after Respondent had dem- onstrated animosity towards Hughes, Shapiro arbi- trarily determined a standard for excessive absenteeism. This absenteeism system was devised after Shapiro's review of employees' attendance rec- ords for the preceding 9 months. Especially because this absenteeism system was a newly implemented and was applied retroactively to employees' records, it would have been reasonable, in our judgment, to inform the employees both of the alleged problem and of this new system that was purportedly de- signed to curb the problem. As the Administrative Law Judge found, however, Shapiro's determinations as to absentee ra:es and chargeable absences were not announced to the employees. It does appear that Shapiro informed Union Stew- ard Cady that he was going to issue letters to about four men regarding excessive absences.5 On May 20, Shapiro sent Hughes and employee Somers "letters of information" saying that if their work attendance did not improve disciplinary action would be taken. On June 27, both Hughes and Somers were sent warning letters.6 On August 2, Shapiro sent Hughes a discharge letter stating that Hughes could "continue to work pending the filing [and hearing] of a timely grievance." Hughes, however, never received either the discharge letter or the preceding warning letters, although all were sent by certified mail. Whatever the reason for Hughes' failure to receive these letters, what is significant is that after the letters were returned by the Postal Service to Respondent as "unclaimed" they were merely placed in Hughes' personnel file.7 As Shapiro admitted, neither he nor any other management official talked to Hughes about his absenteeism problem from issuance of the May 20 letter until the day of his discharge. Hughes did not learn that he was discharged until he report- ed to work on August 22, when he was so informed by Shapiro. Shapiro still failed to explain the reasons for Hughes' discharge. Respondent's failure to discuss with Hughes his absenteeism at any' time belies its position that it had I Only Hughes and employee Keith Somers were identified on the record as having received such letters. 6T'hat an employee besides Hughes received warning letters regarding absences does not persuade us of the disciplinary system's validity. In light of Respondent's representations as to the seriousness of the absentee prob- lem among a number of employees, that only' one employee besides Hughes actually received warning letters supports the reasonable inference that Re- spondent merely sought to create an air of legitimacy around its scheme. Although Shapiro testified thit the placing of these returned letters was consistent with past practice, the record also evidences instances in which employees who had not received letters by certified mail subsequently had them hand delivered by Respondent. In any event, especially noting that Hughes was the first employee discharged under the new absenteeism sys- tem, we deem it unreasonable that Respondent never personally discussed the attendance problem with Hughes 654 ROADWAY EXPRESS, INC. a genuine interest in alleviating the problem. Rather, we are persuaded that Respondent seized upon Hughes' absences as a pretext on which to discharge him for unlawful reasons. We therefore find that Hughes' discharge violated Section 8(a)(3) and (1) of the Act. AMENDED CONCLUSIONS OF LAW Substitute the following Conclusion of Law 3 for Conclusions of Law 3 and 4 of the Administrative Law Judge, and renumber Conclusion of Law 5 ac- cordingly: "3. By discharging Richard Lee Hughes, the Re- spondent violated Section 8(a)(3) and (1) of the Act." THE AMENDED REMEDY Having found that Respondent engaged in certain unfair labor practices in violation of Section 8(a)(l) of the Act, we shall order that Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent discriminatorily discharged Richard Lee Hughes, Respondent shall offer him immediate and full reinstatement to his for- mer or a substantially equivalent position, without prejudice to his seniority or other rights and privi- leges, and shall make him whole for any loss of earn- ings suffered by reason of the discrimination against him, in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and with interest computed as set forth in Florida Steel Corporation, 231 NLRB 651 (1977). (See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).) Because the unfair labor practices include a dis- criminatory discharge and therefore go to the very heart of the Act, we shall order that Respondent cease and desist from infringing in any other manner upon the rights guaranteed employees by Section 7 of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Roadway Express, Inc., Fort Wayne, Indiana, its of- ficers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Discharging or otherwise discriminating against employees because they have engaged in union activities or protected concerted activities. (b) Coercively interrogating its employees con- cerning their intended testimony before the Board in a manner interfering with their rights guaranteed in Section 7 of the Act. (c) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of rights guaranteed by Section 7 of the National Labor Rela- tions Act, as amended. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer Richard Lee Hughes immediate and full reinstatement to his former position or, if that posi- tion no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges. (b) Make Richard Lee Hughes whole for any loss of earnings he may have suffered by reason of the discrimination against him, with interest. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Fort Wayne, Indiana, terminal cop- ies of the attached notice marked "Appendix." 8 Cop- ies of said notice, on forms provided by the Regional Director for Region 25, after being duly signed by Respondent, shall be posted by Respondent immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other mate- rial. (e) Notify the Regional Director for Region 25, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. i In the event that this Order is enforced by ajudgment of a United States Court of Appeals. the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" APPENDIX NOTI(E To EMPLOYI:ES POSTED BY ORDER Of Tile NATIO.NA. LABOR RELATIONS BaRDI) An Agency of the United States Government WE WII.L NOT discharge or otherwise discrimi- nate against employees because they have en- gaged in union activities or protected concerted activities. 655 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WIL.L NOT interrogate our employees con- cerning their intended testimony before the Board in a manner interfering with their rights guaranteed by Section 7 of the National Labor Relations Act, as amended. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bar- gain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL offer Richard Lee Hughes immediate and full reinstatement to his former position or, if that position no longer exists, to a substantial- ly equivalent position, without prejudice to his seniority or other rights and privileges, and WE WILL make him whole for any loss of earnings he may have suffered by reason of the discrimina- tion against him, plus interest. ROADWAY EXPRESS, INC. DECISION STArEMENT OF THE CASE HUTTON S. BRANDON. Administrative Law Judge: This case was heard at Fort Wayne, Indiana, on February 15, 16, and 27, 1978. The charge was filed by Richard Lee Hughes, an individual, on September 21, 1977 1 (amended December 15), and the complaint and amendment to the complaint issued on November 30 and on January 16, 1978, respectively. The primary issues are whether Road- way Express, Inc., herein called Respondent, (a) dis- charged its employee Richard Lee Hughes, and discrimina- torily denied a grievance on such discharge, in violation of Section 8(aX4), (3), and (1) of the National Labor Rela- tions Act, as amended (herein called the Act), and (b) un- lawfully interrogated its employees in connection with preparation for the hearing herein in violation of Section 8(a)(1) of the Act. Upon the entire record,2 including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel, the Respondent, and the Charging Party, I make the following: FINDINGS OF FA(CT I JURISDICTION The Respondent is a Delaware corporation, with a facil- ity and place of business located in Fort Wayne, Indiana, where it is engaged in the trucking industry as a common I All dates are in 1977 unless otherwise stated. 2 [rrors In the transcript have been noted and corrected carrier, hauling freight in both intrastate and interstate commerce. During the past year, the Respondent in the course and conduct of its business purchased goods and materials valued in excess of $50,000 at its Fort Wayne facility, which goods and materials were transported to its Fort Wayne facility directly from States other than the State of Indiana. During the same period, the Respondent in the course and conduct of its business in Indiana re- ceived revenues in excess of $50,000 for the interstate transportation of goods. The Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 11 THE LABOR ORGANIZATION INVOLVED The complaint alleges, the Respondent by answer ad- mits, and I find that Local 414, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. 111. THE ALLEGED UNFAIR LABOR PRACTICES A. The Activities of Richard Lee Hughes Richard Lee Hughes, the Charging Party and alleged discriminatee in this matter, was employed by Respondent in June 1971 and worked as a city driver and dockman until his discharge on August 20.3 Hughes was a member of the Union, which represented a unit of about 24 employees employed by the Respondent at the Fort Wayne, Indiana, facility. A collective-bargaining agreement between Re- spondent and the Union covering the Fort Wayne unit em- ployees was effective from April 1, 1976, through March 31, 1979. In November 1976, Hughes became interested in an or- ganization called the Professional Drivers Council, Inc., herein referred to as PROD, and attended a meeting of that organization in Toledo, Ohio, along with fellow em- ployees of Respondent Elmer Keefer and Richard Loucks on November 21, 1976.4 At this meeting Hughes obtained literature and clothes patches indicating PROD support. The patches he had sewn to his work coveralls which he wore daily to work.5 Hughes also, along with some other employees of Re- spondent, distributed PROD literature at Respondent's Fort Wayne terminal, including the "PROD Dispatch," the organization's newspaper. On occasion, Hughes posted the PROD literature on the Union's bulletin board maintained at Respondent's facil- ]As will be set forth in greater detail hereafter, the discharge decision was made on August 2 and a letter advising Hughes of the discharge issued on that date. However, he was allowed to work pending the filing and hearing of a timely grievance. PRO[) is a nationwide rank-and-file organization of Teamsters. It essen- tially exists to effectuate reformation of the Teamsters Union. The General Counsel concedes that the Teamstcrs hierarchy generally opposes PROD's reformation efforts, at both local and national levels. 5 The evidence is clear from the record that several other employees also wore PROD patches at work. Moreover. from testimony by the General Counsel's witnesses, it appeared that PROD had extensive support among Respondent's Fort Wayne employees. 656 ROADWAY EXPRESS. INC. ity.6 In January he helped organize a PROD meeting with employee Keefer and drove the speaker at that meeting, John Sikorski, a director of PROD, to the meeting. In Feb- ruary Hughes sent a letter to PROD critical of Respon- dent's management and working conditions at Respon- dent's terminal. This letter was published in the "PROD Dispatch" in February and distributed at Respondent's terminal. Hughes also attended a PROD meeting in March. The Respondent does not deny knowledge of Hughes' PROD affiliation or sympathies. Nevertheless, the record is devoid of any direct evidence that Respondent opposed Hughes' activities in this regard. Hughes conceded in his testimony that no supervisor or management official made any remark to him about his PROD activity, although Re- spondent's terminal manager, Richard J. Shapiro, did re- mark to Hughes in August, after Hughes had distributed another "Dispatch" critical of Shapiro, that Shapiro hoped Hughes would learn to spell his name right. There was no evidence that Respondent attempted to restrict distribution of PROD material. However, the General Counsel pre- sented as evidence of Respondent's opposition to PROD evidence that Shapiro in March took down PROD litera- ture posted on the Union's bulletin board. Shapiro admit- ted that he had removed PROD literature from the Union's bulletin board on more than one occasion, but only after he had checked with Union Secretary-Treasurer Freeman Bush and determined that the PROD material was not "of- ficial" union business.7 Hughes, in addition to his PROD efforts, filed a number of grievances with the Union over employment conditions. In late 1976 he joined with 23 other employees of Respon- dent in filing a grievance on Respondent's use of "casual" employees. On December 20, 1976, he filed a complaint with the Department of Transportation concerning unsafe equipment at Respondent's terminal. In February he filed a grievance with the Union regarding the assignment of overtime to a less senior employee. In connection with the foregoing grievance and before it was filed, Hughes had a conversation with Shapiro about it in the presence of em- ployee Duane Widenhoefer. It was Hughes' uncontra- dicted testimony, corroborated by Widenhoefer, that Sha- piro told him, "[Wiell, if you collect it [the overtime pay]. you will have to file a grievance on it," and "[l1f you file a grievance on it, I will promise you that you won't have to worry about getting another chance at it." Hughes subse- quently won the grievance. The record does not indicate whether he was subsequently denied overtime. The record also reflects that Hughes filed grievances on other matters on March 2 (for a warning notice from Respondent on February 28 for too much time taken by Hughes on a break) and June 30 (for a warning notice of June 25 based on insubordination). In addition to the foregoing activities, Hughes filed a 'The collective-bargaining agreement provides for the establishment at Respondent's terminal of a bulletin board, postings on which were restricted at art. 19, sec. 2 "to official business of the Union." The removal of the PROD material from the Union's bulletin board was not alleged, or litigated, as a violation of the Act. However. it does appear that it was the subject of a charge filed with the Board by Hughes in April. which charge, Case 25 CA-8761. was subsequently withdrawn on May 4. charge with the Board's Regional Office in Indianapolis, Indiana, in March. This charge, Case 25 CA 8761. as pre- viously footnoted, was withdrawn on May 4. There was no direct evidence of any hostility by Respondent toward Hughes as a result of his having filed the charge. B. The Re.spondent's Alleged Discriminatory (Conduct Against, and Hostilityv to, Hughes In light of Hughes' activities as outlined above, it is the General Counsel's contention that Respondent began to engage in retaliatory action against Hughes. The first ac- tion in this regard was Terminal Manager Shapiro's "dock- ing" or deducting the worktime of Hughes and employees Keefer and Widenhoefer in the early part of the year for taking too long a break. 8 Again, about February 25, Hughes received a warning letter for overstaying a break. It also appears that Keefer and Widenhoefer, who were with Hughes on the occasion, also received warning letters. Hughes admitted that the three had overstayed their break- time but claimed that it was due to the failure of their dock foreman, [)an Pike, to call them from break as had been his custom. It was Pike who had recommended the warning letters. Hughes claimed the disciplinary warning was dis- criminatory because other employees had taken extended breaks without reprimands even though supervisors "should have" observed it.9 The evidence reflecting some hostility on the part of Re- spondent to Hughes in connection with the filing of the overtime grievance in February has already been noted above. Other evidence of hostility towards Hughes was presented through General Counsel's witness Stanley Mor- ncal. Morrical, a high school student employed by Respon- dent on a part-time basis as a janitor or cleanup man, testi- fied that in April he was in Respondent's office and overheard Shapiro and Salesmen Tom Koch and Mike ('ox talking. According to Morrical, who impressed me as a completely truthful witness, he heard Shapiro talking about "the guys in general that were troublemakers" and refer- nng to Dick Hughes as a troublemaker. Shapiro added that in order to get rid of the trouble they would have to get rid of him. Shapiro also mentioned William (Bill) Cady Ithe union steward] and said he really wasn't too bad. These remarks were not denied by Shapiro, who testified he could not recall the specific remarks or the specific occasion of the remarks attributed to him by Morrical, but he very frankly conceded that he "might have said it at sometime." Morrical was a young but impressive witness whom I must credit, particularly in the absence of contradiction by Sha- piro. 8 General Counsel's witness Keefer put the time of this matter as Decem ber 1976 Hughes testified as to two specific occasions of employees' overstaying breaks. on March 30 and July 8, which he recorded in a diar) He noted that employees Dan Dominguez. Dan Daugherty. Al Echault. and two casual employees had extended their breaks by 10 minutes on March 30 without retaliation by management. On July 8. the same group did it again Other General ( ounsel witnesses, notably Widenhrefer. testified to extended breaks generally but could not specify occasions as Hughes did General Counsel witness Danel Dominguez testified. on the other hand. that exten- sions on breaks sometimes depended on the supervisor and the shifts. hut everybody on a shift was treated the same 657 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Another remark regarding the firing of Hughes by Sha- piro was related by Respondent's employee and Union Steward William Cady. Cady, himself a PROD member, credibly testified without contradiction from any other wit- ness that Hughes had been accused of "grabbing hold" of Doug Bourn, dock supervisor, and that Hughes had ac- cused Bourn of threatening him. Shapiro, in a discussion of the matter with Cady the date of which was not established on the record, told Cady that if Hughes threatened his dis- patchers "like that" and "anything like that" took place he would find a way to fire Dick Hughes. Cady also testified that he had several conversations with Shapiro about equipment problems and failures on the second shift, on which Hughes worked. There was also discussion about markings on a wall or a wall being knocked out. These conversations took place in the early part of the year, and in them Shapiro expressed concern on floor jacks and handtrucks being broken and expressed the belief that it was being done deliberately on the second shift, which was composed of Hughes, Dick Loucks, Elmer Keefer, and Clyde Gerber. Cady testified that he agreed with Shapiro's opinion as to the deliberate destructive ac- tion on the second shift but when he inquired as to specifi- cally who Shapiro suspected Shapiro refused to name any specific second shift member. As other evidence of hostility and disparate treatment toward him, Hughes testified that on March 25 his wife, pursuant to appropriate procedure, called in and reported that Hughes was ill. A few minutes later, Shapiro tele- phoned Hughes to inquire why he wasn't coming to work. Hughes explained it was a back problem that he had been getting treatment for. Then, according to Hughes, Shapiro stated that "if you are unable to work for Roadway to- night, I doubt whether you will ever be able to work for Roadway again." Shapiro in his testimony admitted having called Hughes on this occasion although it was not his habit to "check up" on ill employees but explained that the call was made because Shapiro had received no report as to the reason for Hughes' absence. Shapiro specifically denied the remark attributed to him by Hughes suggesting a dis- charge of Hughes. One other incident of disparate treatment was testified to by Hughes. It occurred in April when Hughes sought to leave work early because of illness. Foreman Dan Pike in- sisted that Hughes sign his timecard showing that Hughes was ill. Hughes refused, because he had seen other people leave work ill without having to sign their timecards. Hughes left without signing the timecard anyway. Subse- quently, he was phoned at home by Pike, who again, this time with another employee on the phone as a witness, inquired of Hughes why he had left. Hughes verified he was sick and expressed his irritation at Pike's call. The Respondent's evidence on this point was presented through Foreman Pike, who related that the requirement that ill employees sign their timecards was designed to avoid grievances from some employees who might leave early but subsequently claim failure of Respondent to give them overtime. Pike claimed that Hughes had already worked his 8 hours and had not left early. He admitted making the phone call to Hughes with employee Clyde Gerber as a witness in order to verify that Hughes was ill and was rejecting the overtime. That the requirement that employees sign their timecards reflecting illness was not applied solely to Hughes was established through the testi- mony of General Counsel's witness Duane Widenhoefer, who related that he also had been required to sign his time- card when he left his shift early due to illness. According to the uncontradicted testimony of Hughes, Hughes was confronted by Shapiro and Operations Man- ager Dan Swinford on June 17 for having "leaned on his two wheeler" for 15 seconds "without doing anything." Hughes acknowledged he had been "resting," and Shapiro replied he did not pay Hughes to rest and did not want it to happen anymore. Shapiro added, according to Hughes, "Hughes, you hate your job. You should quit." In re- sponse, Hughes warned Shapiro that he would have to an- swer to the "maker" for all the harassment, and Shapiro replied that he believed that he would give Hughes 3 weeks' severance pay if he quit. Hughes rejected the idea and walked away. On June 25, Hughes received a warning letter for insub- ordination by certified mail. The warning grew out of an incident which happened on June 23 and further reflects the unquestionable animosity existing between Hughes and Shapiro. Hughes, pursuant to the requirement that dock employees receive permission from supervisors before leav- ing the dock, asked permission from Foreman Doug Bourn to go to the restroom. Although Hughes testified that Sha- piro was nearby, and indeed had been watching Hughes' work for some time, Hughes avoided asking Shapiro for permission to leave the dock, admittedly because he "de- tested asking Shapiro to go to the restroom." When he re- turned to the dock from the restroom, Shapiro confronted him for leaving the dock without permission and said Hughes would be "getting a paper on this." Hughes told him he should ask Bourn first whether Hughes had permis- sion to leave. Hughes then turned to walk away and in walking away made a remark loud enough for Shapiro to hear. Shapiro then told Hughes he had really made a mis- take that time and would be hearing from Shapiro. It was only on cross-examination that Hughes admitted his re- mark referred to Shapiro was a "mother-fucker" and had clearly been loud enough for employee Duane Widenhoe- fer and also Shapiro to hear. Widenhoefer estimated Shapi- ro was 30 feet away from Hughes at the time. Hughes, on June 30, following receipt of the June 25 warning letter based on this incident, filed a grievance on the letter con- tending he did not know what he was accused of. The grievance was not resolved prior to his discharge. Finally, as other evidence of animosity between Shapiro and Hughes, the General Counsel presented evidence that in early summer and continuing until shortly after Hughes' discharge, discussed below, Shapiro began working late each Thursday evening in order to watch Hughes. Shapiro, on the other hand, explained in his testimony that his working late on Thursday evenings was pursuant to "oper- ation redeye," a districtwide program established in order to have the terminal manager present on Thursday nights to insure that all inbound freight that arrived was unloaded and loaded on delivery units to be delivered on Friday mornings. The overall purpose vwas to effectuate as much Friday delivery as possible, because many concerns did not 658 ROADWAY EXPRESS, INC. receive on Saturdays or Sundays. The program required terminal managers to leave work at noon on Thursday only to return late that evening and then work through the night until Friday morning at around 10 a.m. I credit Shapiro's explanation for his presence on Thursday evenings, not only because it was not contradicted by the General Coun- sel but also because it appears to be a reasonable and logi- cal effort to accomplish a desired result, i.e., a greater Fri- day delivery rate. Moreover, if Shapiro was inclined to keep tabs on Hughes, there is no logical reason for him to restrict such activity to Thursday evenings. That Shapiro's observation of employees on Thursday evenings was not restricted to Hughes was evidenced by General Counsel's witness employee Elmer Keefer, who credibly testified that Shapiro "followed" all the employees around on Thursday evenings and criticized their work. Accordingly, I find "op- eration redeye" was not conceived or designed to accom- plish any discriminatory purposes with respect to Hughes. C. The Discharge of Hughes Hughes was discharged on August 2, effective August 20, for excessive absenteeism. The stated reason for the discharge requires some explanation of the Respondent's rules regarding absenteeism. Any such explanation must begin with the collective-bargaining agreement, which states in article 46 that "habitual absenteeism or tardiness shall be subject to disciplinary action in accordance with the procedure outlined in Article 45." t0 Article 46 also pro- vides that the employer shall not discharge or suspend any employee without just cause but, in respect to discharge or suspension, shall give at least one warning notice of the complaint against such employee to the employee in writ- ing and a copy of the same to the local union and job steward affected, except in certain situations not relevant here. Finally, article 46 requires that "Discharge must be by proper notice to the employee and the Union affected." According to the testimony of Terminal Manager Shapi- ro, he received a memorandum dated October 4, 1976, from the Indiana Motor Carriers Labor Relations Associa- tion, Inc. (IMCLRA), of which the Respondent was a member, setting out the procedure to follow in absenteeism cases. That procedure provided for progressive steps in such cases, starting with a review of the employee's atten- dance record over the preceding 9 months and a letter, if appropriate, to the employee relating "full details as to the number of days absent and late." The second step in the procedure calls for a review of the employee again approxi- mately 30 days after the first letter and, if there is no im- provement, a second letter to the employee reflecting that he has not improved and that, absent improvement, disci- plinary action will be taken. The third and final step fol- lows a second review approximately 30 days after the sec- ond letter and, absent improvement, discharge of the employee "pending the decision of the Grievance Commit- tee." Neither the collective-bargaining agreement nor the IMCLRA memorandum defines habitual absenteeism or t0 An. 45 of the contract provides for the grievance machinery. tardiness. However, Shapiro testified without contradiction that in the spring of 1977 he, over a period of time in his week-to-week review of timecards, noted more absences or failures to complete a shift on the part of a number of employees. In May he arbitrarily determined that an ab- sence and failure to complete a shift rate of 10 percent of the employee's workdays was excessive and, in accordance with the IMCLRA memo, conducted a review of employee's attendance records over the preceding 9 months. In making his review, Shapiro decided that any absence or the failure to complete 6-1/2 hours of an 8-hour shift due to an illness unsubstantiated by a doctor's certifi- cate should be treated as a chargeable unexcused ab- sence.'' Shapiro's determinations as to absentee rates and chargeable absences were not announced to the employees generally. However, it does appear from the unrebutted testimony of Union Steward Cady that Shapiro told him that he was going to issue some letters to about four men regarding excess absences.' 2 After conducting his review of absenteeism among the employees, Shapiro on May 20 sent Hughes and another employee named Keith Somers "letters of information." "3 The letter to Hughes, sent by certified mail, noted that during the preceding 9 months Hughes had been absent 17 days (9.2 percent of the scheduled workdays) and had failed to complete his shift on 13 other occasions, for an absentee rate of 16.2 percent. The letter related that if the situation did not improve disciplinary action would be tak- en. The Union was sent a copy of the letter, also by certi- fied mail. Five weeks later, on June 27, Shapiro again reviewed Hughes' (and Somers') records and issued a warning letter to each. Hughes' warning letter, again sent by certified mail, noted that of Hughes' scheduled 24 workdays he had missed 2 and had failed to complete his shift on another occasion, for a total absence rate of 12.5 percent. The letter further noted that it was to be regarded as a "letter of warning in accordance with" the collective-bargaining agreement. A copy of the letter was sent by certified mail to the Union and a copy attached to the timecard of Union Steward Cady pursuant to the practice between the Re- spondent and the Union and to the requirements of the collective-bargaining agreement. On August 2. following another review of Hughes' atten- dance record, Shapiro sent Hughes a discharge letter not- ing that in Hughes' scheduled 24 workdays following the warning letter of June 27 Hughes had been absent twice and failed to complete a shift on I occasion, for a total absence rate of 12.5 percent. The letter stated that Hughes was discharged but advised him that he could "continue to work pending the filing (and hearing) of a timely griev- J While the collectit e-hargaining agreement required "an emploee Echo misses work" as a result of "illness or off-the-joh injur?" to suhslantil;la the illness or injury with a doctor's certificate. the Respondent had not "re quired" doctor', certificates as a condition for returning to work except In cases of absences due to illness for 3 or more days While Cad? pJt the time of this statement from Shapiro as about a month prior to the discharge of Hughes. he ddJ not appear to bhe positlse ahbout the lime. 13 While Shapiro testified that three or f1sur employees other than Hughes and Somers were sent "letters of information." they were never identified on the record. nor were the dales of such letters esiahhshed 659 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ance." Like the previous letters, this letter was sent by cer- tified mail both to Hughes and to the Union, and a copy was attached to Cady's timecard. Cady testified that he received copies of Hughes' warning letter and discharge letter. He also failed to deny Shapiro's testimony that about 2 weeks after the discharge letter issued Shapiro called Cady in to see if Cady had gotten copies of the letters. Cady acknowledged that he had but had not had an opportunity to speak to Hughes about them. The issue regarding the discriminatory nature of Hughes' discharge arises out of the fact that he did not receive any of the letters issued to him regarding his absenteeism. It is not disputed that the letters were correctly addressed. In every case the letters were returned to the Respondent showing that the addressee had not responded to two no- tices of certified mail for each letter, and, thus, the letters were returned by the Postal Service to the Respondent as "unclaimed." 14 It is conceded by Shapiro that neither he nor any other management official talked to Hughes about his absentee- ism and that when the certified letters were returned un- claimed there was no attempt to personally hand-deliver them to Hughes. On the contrary, and based on Shapiro's testimony of what past practice was, the letters were simply put in Hughes' personnel file. Shapiro's further explanation of the failure to communicate with Hughes about the ab- sences was that he thought that Hughes was "playing games" with the letters, particularly since Hughes had re- ceived the warning letter of June 23 by registered mail at the same address. Shapiro testified that he was only con- cerned that an opportunity had been given to Hughes to receive the notices and that the collective-bargaining agree- ment had been complied with. When Hughes reported for work on August 22, he was told by Shapiro without further explanation that he no lon- ger worked for Respondent. Hughes subsequently filed a grievance with the Union, but it was deadlocked at th: Joint Local Area Committee over the issue of timeliness, since the discharge was dated August 2 and no written appeal of such discharge was made within 10 days from the discharge action, as required under article 46 of the collec- tive-bargaining agreement. The grievance was subsequent- ly heard at the Joint State Committee level, as will be de- tailed below, and was denied as untimely. D. Contentions and Conclusions It is the General Counsel's argument that the discharge of Hughes was based on a pretext, and that Hughes' PROD activity and his filing of the charge with the Board 14 Specifically. postal markings on Ihe -1May 20" letter show it was mailed or "metered" May 31 and that following attempted delivery the first notice by the Post Office to the addressee of certified mall was dated June 1. while the second notice was June 6 and the letter was marked for return to Re- spondent on June 16. Ihe "warning letter" was metered on June 27. the first and second notices were left on June 28 and Jul) 7. respectivel), and the letter was marked for return to sender on July 13. The discharge letter was metered on August 2 and notices left on August 4 and 10. It was marked for return to sender as unclaimed on August 19 and received by Respondent about August 20. Postal practices regarding certified mail and the interpre- ration of postal markings were testified to be Jerry Reynolds, manager of retail sales and service at Fort Wayne Post Office. in March were Respondent's real motivation for the dis- charge of Hughes. As primary evidence of the nature of the discharge, the General Counsel relies upon Shapiro's fail- ure at any time to orally advise Hughes of the attendance problem or to insure that Hughes received notice of the disciplinary steps being taken on such absences. In this regard the General Counsel presented evidence showing that in some cases certified letters which had been mailed by Respondent to employees and which were returned un- claimed were thereafter hand delivered to the employees involved. Also as evidence of the pretext, the General Counsel, through the testimony of Hughes, disputed the Respondent's contention that the absences of Hughes oc- curring after the date of the June 27 warning letter were unexcused. While it is not clearly enunicated by the Gener- al Counsel, it also appears that he contends that the whole scheme of issuance of warnings on absences was a device aimed by Respondent at ridding itself of Hughes, particu- larly since, as was established, Respondent had never be- fore discharged an employee for excessive absenteeism. The brief of the Charging Party also argues that implemen- tation of the absentee rules, the arbitrary criteria used in determining the violation of the rules, "the inequitable ap- plication of the rules," and the manner of discharge of Hughes, which effectively prevented him from filing a timely grievance, "would" strongly "imply a calculated plan to rid the company of this employee in any manner possible and to effectively quell the evergrowing PROD threat." The Respondent by brief argued that a valid and con- tractual basis existed for the discharge of Hughes for exces- sive absenteeism. In this regard the Respondent points out that neither the General Counsel nor the Charging Party has rebutted the Respondent's evidence regarding the ac- curacy of its records showing the absenteeism of Hughes, including the suspicious circumstances that 18 out of 34 of Hughes' absences or failures to complete a shift occurred on Fridays. Moreover, the Respondent argued that there was no evidence presented by the General Counsel of a causal relationship between Hughes' discharge and either his PROD activities i' or his filing of a charge against Re- spondent with the Board. It is axiomatic that an employer may discharge an em- s Resprondent also crontended that there could be no violation of Sec. 81(a)(3) as alleged in the complaint even if Hughes was discharged because of his PROD activities, because PROD is not a labor organization. The Gener- al Counsel did not argue the point, and PROD was not alleged in the complaint to be a labor organization. While an argument may be made that an emplo)er's discriminatory action based on PROD activity may have a tendency to discourage membership in the Union because it inhibits that reform activity which might make the IUnion more effective or membership more desirable. I find it unnecessary to decide the point. I find that activity on behalf of PROD constituted activity protected under Sec 7 of the Act. See Transcon Lines, 235 NLRB 1163 (1978): Ford Motor Company (Rouge (Comple), 233 NLRB 698 (1977): United Parcel Service, Inc., 230 NLRB I 1197 (1977); United States Steel Corporation, Lorain Works., 216 NLRB 874 (1975). The PROD activity not only extended to reform of the Union but also served as a vehicle for employee expression of concerns over their conditions of employment. A discharge for PROD activity would warrant a reinstatement remedy under Sec. 8(a)(1) regardless of whether PROD is a labor organization within the nmeaning of Sec. 2(5) of the Act. Finally, and in an! event, the complaint also alleges that the discharge of Hughes was also based on "other union activity," so tisat an 8(a)(3) finding would have an appropriate basis, assuming it had evidentiary support. 660 ROADWAY EXPRESS, INC ployee for any reason, good or bad, or for no reason at all, but a discharge is unlawful under the Act if the employer in making the discharge decision is motivated even in part by the employee's activities protected under the Act. If the reason assigned by an employer for the discharge is not convincing, other evidence, both direct and circumstantial, of the employer's animus toward the affected employee's protected concerted activities may be relied upon in draw- ing an inference that the real reason for the discharge was to interfere with, restrain, or coerce the employee or em- ployees generally in violation of the Act.'7 In the instant case, there exist four forms of activity en- gaged in by Hughes which were protected under the Act and which, if shown to be singly or in combination a con- tributing cause to his discharge, would make his discharge unlawful. Such activity consists of not only Hughes' PROD activity but also his filing of a complaint with the Depart- ment of Transportation, his filing of grievances with the Union, and, of course, his filing of the charge with the Board. I am not convinced, however, that the record con- sidered as a whole establishes by a preponderance of evi- dence that Hughes' discharge was based on reasons pro- hibited by the Act. In reaching this conclusion, I have considered all the background of alleged discriminatory conduct directed at Hughes.'9 Such conduct, however, appears to be nothing more than a continuation of the "harassment" complained of by Hughes in his letter published in the February PROD "Dispatch." It was this "harassment," a product of rather high-handed and perhaps overly strict management, which was a cause of the PROD support among the Respondent's employees rather than the effect of it. Moreover, Hughes was not singled out for this harassment. In each situation where Hughes was warned or reprimanded, other employ- ees involved were similarly warned or reprimanded.2 There is, however, without doubt, substantial evidence on the record that extreme animosity existed between Sha- piro and Hughes. This is reflected in Shapiro's admission that Hughes was always trying to "confront" Shapiro, and Shapiro's undenied solicitation of Hughes on June 17 to "quit." It is shown on Hughes' part by his apparent effort to embarass or entrap Shapiro on June 23 by asking anoth- er supervisor without Shapiro's knowledge for permission to leave the dock and then "confronting" Shapiro with such permission after Shapiro upbraided him for leaving the "dock." It is also clearly revealed by Hughes' acknowl- 16 N.LR.B. v. Howell Automatic Machine Co., 454 F.2d 1077 (6th Cir. 1972). Unirted States Steel Corporation. Loratne Works, supra. 18 The Board has previously held that filing of complaints by employees with the Department of Transportation is an activity protected under the Act. See B & P Motor Express. Inc., 230 NLRB 653 (1977). 19 This includes an allegation by Hughes that in July Supervisors Dan Swinford and Doug Bourn followed him to a restroom and looked in at him through an outside window. Bourn did not testify, and Swinford denied the incident. While I credit Hughes on the point that he saw Bourn and Swin- ford outside the restroom window. I am not persuaded the evidence estab- lishes that they "followed" him for the purpose of harassing him. Neither was alleged to have said anything to him on the occasion. '2 Affidavits of Hughes to the Board in connection with his earlier charge were submitted in evidence by Respondent. Those affidavits recite several incidents of "harassment" directed at other employees besides Hughes. edged and open referral to Shapiro as a "mother-fucker." Shapiro's undenied comments to Hughes regarding the filing of the February grievance on overtime, as well as his reference to Hughes as a troublemaker, as testified by Mor- rical, offer substantial support for the conclusion, argued by the General Counsel, that Shapiro's animosity toward Hughes was based in significant part upon Hughes' pro- tected activities. The timing of the "troublemaker" refer- ence in April also strongly suggests that it was prompted by Hughes' filing of his charge with the Board.2' In view of this background, the circumstances of Hughes' discharge must be scrutinized most carefully in determining whether the grounds asserted for the discharge were real or merely a pretext designed to conceal an unlawful motive for the discharges. In considering the nature of the discharge, an examina- tion of Hughes' absentee record is required. The Respon- dent's record on Haghes' absences were not rebutted by the General Counsel. It must be conceded, then, that Hughes did in fact miss the days of work which Respon- dent alleges he missed and that he failed to complete by more than an hour and a half the shifts specified by Re- spondent. The next question presented is whether any of the absences or failure to complete shifts counted by Re- spondent in Hughes' record were in fact excused absences under Respondent's rules or the collective-bargaining agreement. Hughes attempted to explain his absences for illness or excusable reasons on only five occasions: once in March, once in April, and the final three absences in July which provided the basis for his discharge. Notwithstand- ing that the collective-bargaining agreement required a doctor's certificate for absences due to illness of however short a duration. Hughes did not submit a doctor's certifi- cate for any absence due to illness prior to his July absenc- es, presumably because Respondent had not enforced the collective-bargaining agreement provision for absences of less than 3 days' duration. Whether he submitted a doctor's statement regarding his July 14 and 15 absence requires a credibility resolution, for Hughes testified and Foreman Dan Pike denied that Hughes advised Pike he had the "slip" from the chiropractor if Pike wanted it but that Pike ignored him completely. Pike in his testimony denied that he had refused any medical slips offered by Hughes or that Hughes had ever offered him any such slips. It is not dis- puted that Hughes had such a slip, dated July 15. However, I am inclined to accept Pike's testimony over Hughes in this regard. Pike in demeanor was convincing and his deni- als were positive and emphatic and not affected by cross- examination. Moreover, if I am to believe Hughes' testi- mony that he did not know in July that his absentee record was under consideration by Respondent, and since Re- spondent had not been requiring medical certificates for illnesses of less than 3 days' duration, there was no reason for Hughes to offer the doctor's slip to Pike. There was no showing he ever offered them before when absent due to 2' Morncal's testimony showed the "troublemaker" remark was made in April. It was mentioned by Hughes in a statement to the Board in connec- tion with his first charge on April 15 Thus, the remark had to have been made in the first 2 weeks of April. Neverthelrss, Shapiro's animosity toward Hughes predated the filing of the charge, as shown by his remarks regarding Hughes' filing of the February overtime grievance. DECISIONS OF NATIONAL LABOR RELATIONS BOARD illness. In addition, Hughes left work early on July 27 to obtain medical attention for an off-the-job injury previous- ly sustained and made no attempt to document that treat- ment. Accordingly. in this instance. I credit Pike's testi- mony. I therefore find that Hughes had been absent or left his shift early on the July days alleged by Respondent and that Respondent was not aware the absences were excusa- ble. Next to be considered is whether Respondent fabricated the whole absentee issue as a device to get rid of Hughes. There is little to support this proposition. That Respondent was experiencing an absentee problem in the spring is not contested by the General Counsel. There is no showing that in reaching the determination to issue warning letters on absenteeism Respondent was selective in considering only Hughes' record. While Shapiro's determination that an absentee rate in excess of 10 percent was excessive stands as an arbitrary one, it does not appear unreason- able, even when counting incomplete shifts. No evidence was offered that other employees with identical or worse absentee records were not similarly warned. On the con- trary, Respondent's uncontradicted evidence was that at least one other employee was issued a "letter of informa- tion" for absenteeism. That employee, Keith Somers, like Hughes, had his record reviewed by Shapiro 5 weeks after the "letter of information" and again, like Hughes, was sent a warning letter. Finally, in considering whether Respondent was seizing upon the absentee record of Hughes as a device to effectu- ate an unlawful discharge, it must be noted that such a device would have little hope of succeeding unless it could be effectively concealed from Hughes so that he would have no opportunity to either protest Respondent's method of counting absences against him or to avoid discharge by insuring that he had no additional unexcused absences. While the modern mail system may leave much to be de- sired with respect to efficiency, it has not yet reached the point where it can reasonably be expected that a certified letter duly mailed will not be delivered or received. There is evidence in the record showing that some em- ployees refused to receive certified mail from the Respon- dent for various reasons. Thus, employee Richard Loucks testified he refused certified mail if he did not know what it was or if he did not know it was due. But there was no evidence that Hughes had previously rejected certified mail from the Respondent. Indeed, it appears that Hughes had in fact received a warning notice by mail from Respondent on February 28 regarding his overstaying the break period. He also re- ceived a warning letter by certified mail from Respondent on June 25 involving alleged insubordination resulting from his obscene reference to Shapiro. The latter letter was received by Hughes after the May 20 "letter of informa- tion" regarding Hughes' absences had been returned to the Respondent as unclaimed and only 3 days before the first postal notice of certified mail involving the first warning letter on Hughes' absences was left in Hughes' mailbox on June 28. There is little wonder that Shapiro concluded that Hughes was "playing games" with him. Although there is evidence that on occasion the Respon- dent hand-delivered to the involved employee some certi- fied mail returned to it as unclaimed, there is also evidence that Shapiro simply placed returned certified mail in the employee's personnel file. This latter action is consistent with his testimony that he was only concerned that the effected employee was given an opportunity for notice. The collective-bargaining agreement called for "written" warning and discharge notices and, so far as the record shows, the Respondent as a practice utilized certified mail to comply with the bargaining agreement. Assuming, arguendo, that Respondent could hope to conceal the "letter of information," the warning notice, and finally, the discharge notice to Hughes, based on the expectation that he would not receive certified mail, all hope of such concealment would have to be abandoned by virtue of compliance with the collective-bargaining agree- ment calling for service of copies of such letters on the Union and Union Steward Cady. While Respondent might hope that the Uniol, because of Hughes' PROD activity, might not communicate with Hughes concerning the let- ters, there was no basis for such a hope with respect to Cady, a fellow PROD member. Finally, had there been an effort to conceal Respondent's actions with respect to Hughes, it is extremely unlikely that Shapiro would have called Cady in prior to the effectuation of termination of Hughes to insure that Cady had received copies of Hughes' warning and discharge letters. Considering all the foregoing, I cannot conclude that Respondent seized upon Hughes' absences as a pretext upon which to discharge him for unlawful reasons. Nor I can conclude that Respondent sought to implement the discharge in such a manner as to unlawfully preclude Hughes from filing a grievance concerning his discharge. It is patently incredible that the use of certified mail for no- tice purposes could be construed as an attempt to avoid notice. In any event, there is undenied record evidence that Hughes had actual notice of his discharge in sufficient time to launch inquiry or file a grievance. Such evidence is found in the testimony of George Stanutz, an employee of Respondent and, like Hughes, a PROD member, who cred- ibly testified without contradiction that a couple of weeks before Hughes' final termination Stanutz saw Union Busi- ness Agent Art Van Wald as Stanutz was making a delivery at Teeple Truck Lines. Van Wald inquired of Stanutz if Stanutz had heard anything about Hughes' being fired. Stanutz replied that he had not, and Van Wald explained that the Union had received a letter saying Hughes had been terminated. When Stanutz returned to Respondent's terminal, he saw Hughes and related to him his conversa- tion with Van Wald. Hughes' failure to react to Stanutz's information is as inexplicable as his failure to receive the certified mail sent to him by Respondent. It can only be concluded that Hughes, for whatever reason, whether he was "playing games" with Shapiro or otherwise, was at- tempting to avoid notices from Respondent which he did not receive. I find it incredible that Hughes or some member of his household did not receive at least one of the six notices left by the Postal Service on the three separate pieces of certi- fied mail sent to him by Respondent regarding his absenc- es. While Hughes' explanation that his wife had decided to decline to sign for certified or registered mail not specifi- 662 ROADWAY EXPRESS, INC. cally addressed to the Hughes family and had instructed children in the family not to "sign" for such mail might explain a failure to receive the mail when attempts at deliv- ery were made by the postal service, it does not explain any failure to receive or respond to the notices of certified mail left in the Hughes' mailbox. On the other hand, the circum- stances are more consistent with a statement attributed to Hughes by employee John E. Hanni, who was presented as a witness by Respondent. Hanni testified that Hughes. at a union meeting in September, told Business Agent Van Wald that he had instructed his wife not to receive certified mail. Hanni's recollection was that Hughes had restricted such instruction to letters from Respondent. Hanni ap- peared to be a straightforward and impartial witness. I credit his testimony over Hughes' denial that he made such a remark, for it is the only plausible explanation of Hughes' failure to accept attempted delivery of the certified mail. The Charging Party's brief argues in avoidance of any "game playing" by Hughes that there was no way for Hughes to be selective in his receipt of certified mail from Respondent. In this regard the brief points out that Hughes received the June 24 letter regarding insubordination but did not receive the previously mailed May "letter of infor- mation" or the subsequently mailed June and August let- ters on absenteeism. On the contrary, the insubordination letter resulted from a run-in with Shapiro in which Hughes had engaged in serious misconduct and had been advised at the time of the event that he would get a letter on it. It would be logical for him to conclude that the next certified letter sent to him would involve such conduct. Moreover, while the notice forms left in Hughes' mailbox regarding certified mail did not indicate the sender of the certified mail, it would not have been impossible for a member of Hughes' household to ascertain who the sender was when the initial attempts of delivery by the Postal Service were made. None of Hughes' household members testified in this proceeding. Under these circumstances, I conclude Hughes made a conscious avoidance of the letters. Thus, notwithstanding Respondent's failure to hand-deliver the letters to Hughes, I find the General Counsel has failed to establish by a preponderance of evidence that the absen- teeism of Hughes was a pretext for his discharge designed to preclude his filing a grievance on the discharge. I find the evidence does not establish a causal connec- tion between Hughes' filing of a charge with the Board in the spring or his protected activities and his discharge. With respect to the filing of the charge, it is clear that the Respondent's animosity toward Hughes predated such ac- tion. While Shapiro's reference to Hughes as a "trouble- maker" occurred around the time the charge was filed by Hughes, there was nothing else to show a relation between the two, particularly since the reference was made in the context of identifying other "troublemakers," none of whom had filed charges with the Board. With respect to Hughes' protected activities, only the Shapiro remark re- garding the overtime grievance suggests that Shapiro's dis- like of Hughes stemmed from his protected grievance ac- tivity. This alone is insufficient to show that the subsequent action of Respondent with respect to Hughes was based on such activity, particularly in the absence of evidence that Hughes was subsequently denied overtime, as Shapiro's re- mark suggested he would be if he filed a grievance. Lastly, even assuming that the animosity between Shapi- ro and Hughes was based upon his protected activities, it does not necessarily follow that Hughes' discharge was predicated upon that animosity. As the Board said in P. G. Berland Paint City, Inc.., 199 NLRB 927, 928 (1972), "the mere fact that an employer may want to part company with an employee whose union activities have made him persona non grata does not per se establish that a subse- quent discharge of that employee must be unlawfully dis- criminatory." See also Golden Nugget, Inc.. 215 NLRB 50 (1974): Klate Holt Companr, 161 NLRB 1606 (1966). Here, I find that Hughes obliged the Respondent by providing a valid basis for discharge and by ignoring appropriate no- tices which would allow him to either avoid or test the basis for the discharge under the collective-bargaining agreement. That Respondent may have been pleased to have the opportunity to rid itself of Hughes because of his protected activities does not establish the violation in the absence of evidence that he would not have been dis- charged but for such activities. Based on all the foregoing, I find that the General Coun- sel has failed to establish by a preponderance of evidence that the discharge of Hughes violated Section 8(a)(4) or (3) of the Act, as alleged in the complaint. D. The Additional 8(a)(4) Allegation The General Counsel also argues that the Respondent discriminatorily, and in violation of Section 8(aX4) of the Act, denied (as the complaint has it) or failed to process (as the General Counsel's brief has it) Hughes' grievance on his discharge because Hughes filed a charge in the instant case on September 21. It appears that Hughes did in fact file a grievance on his discharge, which was heard by the Joint Local Grievance Committee under the collective-bargaining agreement in Fort Wayne on August 29. That committee heard the Re- spondent's arguments that the grievance was untimely and deadlocked the issue. The next step was the hearing before the Joint State Committee in Indianapolis on September 22, the day following Hughes' filing of the charge herein. That body, again hearing the Respondent's position, agreed that the grievance was untimely and dismissed it without reaching the merits of the grievance. Based on the foregoing, there is no evidence whatsoever that the Respondent refused to process the grievance for any reason. If there is any' violation, it must be based upon Respondent's denial of the grievance for discriminatory reasons. But the Respondent argues that it did not deny the grievance and, rather, that the denial was a decision of the impartial Joint State Committee, over which Respondent had no control. I reject this argument, because the Joint State Committee accepted the position urged upon it by Respondent. The Committee decision was the direct result of the position taken by the Respondent. Indeed, there is nothing on this record to show the committee acted sua sponte. Moreover, there was nothing shown which would have precluded Respondent from waiving its timeliness ar- guments. But there remains the question of whether Respondent's 663 DECISIONS OF NATIONAL LABOR RELATIONS BOARD efforts to have the grievance denied were motivated by Hughes' having filed the charge with the Board the day before. In seeking to establish that the Respondent was so motivated, the General Counsel relies upon the testimony of Union Steward Cady. Cady testified that just after the Joint State Committee hearing concluded he had a conver- sation with Charles Fouts, a relay manager for Respon- dent's Indianapolis Relay Terminal and Respondent's delegated labor relations representative in grievance mat- ters for Indiana. Cady related that Fouts said "that the meeting probably would have been settled or the hearing probably would have been settled if Dick [Hughes] wouldn't have went and filed with the National Labor Re- lations Department before the grievance hearing." Pressed further by the General Counsel, and after having his recol- lection refreshed by a statement submitted to the Board during investigation of the case, Cady equivocated but fi- nally testified that Fouts' statement was that if it was not for Dick's "filing a day ahead of time with the National Labor Relations Department, that the grievance would have been heard, but since he did, well, let the National Labor Relations Board handle the grievance instead." Fouts, presented as Respondent's witness, acknowledged a conversation with Cady after the committee hearing but testified that what he said was simply an explanation of what the Committee's decision meant. He testified he told Cady that the "case was ruled untimely filed" and ex- plained that "it was the same thing as denying the claim of the Union and the facts of the case would never be heard." With respect to a settlement reference, Fouts testified he told Cady "that he had attempted to settle the case prior to the state meeting and that the local union had told him Hughes had not accepted the settlement offer and that he had subsequently learned that Hughes had filed his charge with the Board." Fouts conceded that he was aware at the time of his conversation with Cady that Hughes had filed the charge and believed he mentioned it to Cady. He spe- cifically, denied, however, telling Cady that Hughes' griev- ance had been denied by the grievance committee because Hughes had gone to the NLRB. While Cady impressed me as being a generally credible witness, his equivocation and obvious uncertainty regard- ing the remarks he attributed to Fouts undermined his tes- timony on that point. Fouts, on the other hand, impressed me as candid and a more credible witness on the conversa- tion with Cady. I therefore credit his version. In any event, even accepting Cady's version of Fouts' remarks, I would base no finding of an 8(a)(4) violation of the Act thereon. At most, Fouts' remarks as alleged by Cady would reflect only recognition of the fact that the filing of a charge tends to "harden" or "fix" the positions of the parties for reasons not in any way related to a desire to penalize an individual for filing a charge. For example, one may decline a change of position following the filing of a charge in order to avoid the implication that the position is weak or indefensible. Here Respondent's position before the Joint State Committee was the same as it had been at the Joint Local Grievance Committee level before Hughes filed his charges. Moreover, the filing of the charge, con- taining as it did an allegation of an 8(aX4) violation, made it questionable whether a committee decision on the merits of Hughes' case would result in a final disposition of the matter which would have been honored by the Board. See Spielberg Manufacturing Company, 112 NLRB 1080 (1955); cf. McKinley Transport Limited, 219 NLRB 1148 (1975); U.S. Postal Service, 227 NLRB 1826 (1977). There is no question but that if the matter was not resolved by the Joint State Committee to the satisfaction of Hughes any deferral to further processing of the grievance to other steps in the grievance machinery would not have been ap- propriate under Board precedent. General American Trans- portation Corporation, 228 NLRB 808 (1977). Deciding un- der the circumstances not to acquiesce in proceeding on the merits of Hughes' grievance cannot be construed as retaliatory for his having filed a charge with the Board. Thus, a statement by Fouts to the effect that the grievance would not be heard on its merits or that the grievance could not now be settled because of Hughes' filing the charges could not, without more, establish the 8 (aX4) viola- tion alleged. Accordingly, I find Respondent did not either discrimi- natorily refuse to process Hughes' grievance or discrimina- torily deny it in retaliation for his having filed a charge, in violation of Section 8(a)(4) and (1) of the Act. E. The Alleged Unlawful Interrogation At the hearing the General Counsel moved, and the mo- tion was allowed, to amend the complaint herein to allege that Respondent, through Terminal Manager Shapiro and its attorney, James E. Hughes, on or about February 14 unlawfully interrogated its employees. The amendment was based on the testimony of Stanley Morrical, who testi- fied that on the evening of February 13 he was called into Shapiro's office, where he talked to Shapiro, Supervisor Swinford, and subsequently, by phone, to Attorney Hughes. Morrical related that after Shapiro remarked that he had heard Morrical had been subpenaed for the hearing he asked Morrical "what he was supposed to say at the hearing." Shapiro added, according to Morrical, who was a high school student and only a part-time employee, that if Morrical was going to testify about Shapiro taking "things" off the bulletin board not to worry because Shapiro had already told "them" about that anyway. Morrical then "mentioned" the other information about Hughes regard- ing the "troublemaker" reference by Shapiro. Shapiro then called Attorney Hughes and asked Morrical to talk to him. Morrical did so, going into another office in the presence of Swinford and getting on a phone extension while Shapi- ro remained in his office on the line with Attorney Hughes. Attorney Hughes then inquired of Morrical regarding his information about the Hughes situation. Morrical testified he understood why Attorney Hughes was asking him the information requested and gave Attorney Hughes substan- tially the same information he related at the hearing herein. Shapiro remained on the line. Although he conceded that no threats of reprisal were directed at him, Morrical testi- fied that he was not advised by Attolney Hughes of wheth- er or not he had a choice in talking with him. He denied that he was ever given any assurances against reprisals if he 664 ROADWAY EXPRESS, INC. did not desire to talk to the Respondent's representatives regarding his testimony. The Respondent's evidence on this issue was presented through the testimony of Shapiro, Swinford, and Attorney Hughes. All three testified that Morrical was advised, at least indirectly, that remarks to them would be voluntary. Swinford, who took Morrical into Shapiro's office, testified somewhat equivocally that Shapiro told Morrical that he "didn't have to talk to us or wanted to know if he would be willing to talk to our lawyer," and Morrical replied affir- matively. Shapiro testified he told Morrical that Shapiro was "sure" that Respondent's attorney would like to talk to him and "you are not being forced to, but he would like to talk to you." On cross-examination, Shapiro was less posi- tive about whether he told Morrical that Morrical didn't have to talk to him. Attorney Hughes testified that he ex- plained to Morrical that Morrical did not have to talk to him, that it was voluntary on Morrical's part. Although Hughes took brief notes on the telephone conversation with Morrical, the notes which were submitted in evidence appear to refer only to remarks made by Morrical and not to statements made by Hughes to Morrical. It is conceded by all witnesses that no assurances against reprisal were given to Morrical. Attorney Hughes' strained explanation for such failure was that "the problem of men- tioning the word 'iob' in that place, in that situation, it seems to me, is that once you wave the specter of non- retribution, you are in many ways suggesting tacit retribu- tion and that's pretty dangerous water and I don't like to skate on top of that kind of ice." A close examination of the record does not establish that Morrical specifically denied Shapiro's testimony that he told Morrical before calling Attorney Hughes that Morn- cal was not "forced" to talk to Hughes. Likewise, Morrical did not specifically deny Swinford's testimony that Shapiro did not have to talk to Shapiro. I am satisfied, then, that regardless of whether Attorney Hughes informed Morrical that Morrical did not have to talk to him, Respondent had indicated to Morrical the voluntary nature of the conversa- tion. But there remains the possibility that the conversation was coercive because of the absence of any assurance against reprisals. The General Counsel, citing Johnnie's Poultry Co. and John Bishop Poultry Co., Successor, 146 NLRB 770 (1964), enforcement denied on other grounds 344 F.2d 617 (8th Cir. 1965), and Tamper, Inc., 207 NLRB 907 (1973), enfd. 522 F.2d 781 (8th Cir. 1975), contends that the failure to give Morrical assurances against reprisal made the ques- tioning by Shapiro and Hughes unlawful under Section 8(aX1) of the Act. In Johnnie's Poultry Co., supra, the Board recognized that despite the inherent danger of coercion therein an em- ployer who has legitimate cause may interrogate employees on matters involving their Section 7 rights without incur- ring 8(a)(X) liability. Such "legitimate cause" includes "the investigation of facts concerning issues raised in a com- plaint where such interrogation is necessary in preparing the employer's defense for trial of the case." However, the Board set down "safeguards" in Johnnie's Poultry trans- gression of which by an employer in this area would consti- tute a violation. Thus, the Board held (at 775) that: [T]he employer must communicate to the employee the purpose of the questioning, assure him that no re- prisal will take place, and obtain his participation on a voluntary basis; the questioning must occur in a con- text free from employer hostility to union organization and must not be itself coercive in nature; and the questions must not exceed the necessities of the legiti- mate purpose by prying into other union matters, eliciting information concerning an employee's subjec- tive state of mind, or otherwise interfering with the statutory rights of employees. The Respondent would distinguish Johnnie's Poultry on the grounds that the employees therein questioned were, in effect, indirect charging parties, i.e., persons on whose be- half the charge was brought, whereas in the instant case Morrical was not so situated. Moreover, Respondent ar- gues the questioning of Morrical did not tend to infringe upon any rights of Hughes, the charging party, and there was no showing that any alleged infringement on Hughes' rights was successful. I reject these arguments. The Act is designed to protect public rather than private rights. N.LR.B. v. Fant Milling Company, 360 U.S. 301 (1959). Furthermore, the charge in the instant case, containing a broad 8(a)( I) allegation as it does, was sufficient to cover the infringement upon employee rights involved in the amendment to the complaint. Moreover, as stated in Johnnie's Poultry, supra at 775, "Interrogation concerning employee activities directed toward enforcement of Section 7 rights also interferes with the Board's processes in car- rying out the stat utory mandate to protect such rights." The Respondent also relies upon S. S. Logan Packing Company, 152 NLRB 421 (1965), Kern's Bakery, Inc., 154 NLRB 1582 (1965), Huttig Sash & Door Company, Inc., 154 NLRB 1567 (1965), and Highview, Incorporated, 231 NLRB 1251 (1977), as showing that the questioning of Morrical was not unlawful. In the first three cited cases it does ap- pear that no assurances against reprsal were given and still no violations were found. In Highview Incorporated, it is not clear whether assurances against reprisal were in fact given. Nevertheless, more recent Board decision, as set forth below, are more informative and more restrictive re- garding the effect of the absence of such assurances. On the record I find that Respondent, in questioning Morrical, satisfied all the Johnnie's Poultry requirements save one, the requirement that assurances against reprisal be given. In Tamper, Inc., supra, the Board adopted the conclusion of the Administrative Law Judge that the fail- ure to give employees assurances against reprisals consti- tuted an "omission invalidating the privilege [of interroga- tion]." While the respondent there had breached the Johnnie's Poultry safeguards in other respects, then Chair- man Miller, in a dissent in part, noted his concurrence with the majority on the Johnnie's Poultry issue only on the grounds of the Respondent's failure to assure employees that no reprisal would be taken against them. The Fourth Circuit Court of Appeals, in enforcing the Board's Order in Tamper, Inc., noted that in view of the absence of assur- ances on voluntariness and against reprisals there was a strong likelihood that employees felt coerced into answer- ing questions posed by the Company's attorney and that 665 DECISIONS OF NATIONAL LABOR RELATIONS BOARD accordingly a finding of an 8(a)(1) violation was support- able. In an earlier case, Brown Specialty Company, 174 NLRB 519 (1969), the Board adopted the finding of the Trial Ex- aminer that an employer, in inquiring of employees regard- ing a union's majority status, violated Section 8(a)(l) of the Act by failing to give the questioned employees assurances against reprisals. While recognizing the legitimate purposes of such inquiry, the Trial Examiner found the failure to give the employees assurances against reprisals made the inquiries coercive. See also Automatic Warehouse Distribu- tors, Inc., 171 NLRB 683 (1968); cf. Kinter Brothers, Inc., 167 NLRB 57 (1967); Raytheon Company, 160 NLRB 1603 (1966). I conclude that Tamper, Inc., represents the Board's pres- ent posture on the application of the Johnnie's Poultry safe- guards and compels a finding here that the failure of Re- spondent to give Morrical assurances against reprisals constituted a violation of Section 8(a)(1) of the Act. The interview with Morrical, even if not "forced," could hardly be considered as truly voluntary in the absence of any assurance to Morrical that any rejection by him of the interview questions by Shapiro and Respondent's attorney would not meet with any reprisals. As in the situation not- ed by the court in enforcing the Board's Order in Tamper, Inc., I do not question the good faith of Respondent in interviewing or questioning Morrical. However, the poten- tial for coercion was present under the circumstances of the interview, with the attendant risk of interference in the Board's processes. Compliance with all the Johnnie's Poul- try safeguards is the minimum required to dispel the poten- tial and avoid this risk. CONCLUSIONS OF LAW 1. The Respondent, Roadway Express, Inc., is an em- ployer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union, Local 414, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent did not violate Section 8(a)(4), (3), and (I) of the Act in discharging Richard Lee Hughes. 4. The Respondent did not violate Section 8(a)4) and (I) of the Act in the processing or denial of the grievance of Richard Lee Hughes filed as a result of his discharge. 5. By coercively interrogating an employee concerning his intended testimony before the Board without following appropriate safeguards, including providing assurances against reprisals, the Respondent interfered with, re- strained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act, thus engaging in an unfair labor practice within the meaning of Section 8(a)(1) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find it necessary to order the Re- spondent to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. [Recommended Order omitted from publication.] 666 Copy with citationCopy as parenthetical citation
